Gen.  M.  M.  Trumbull.  Was  It  a  Fair 

£37  v  Trial?  An  Appeal  to  the  Governor  of 

I 111.  in  behalf  of  condemned  anarchists 


335.83 

T77w 
cop.  2 


LIBRARY  OF  THE 
UNIVERSITY  OF  ILLINOIS 
AT  URBANA-CHAMPAICN 


n 


UBKATTr 
UNIVERSITY  OF 
URBANA 


AN 


TO  THE  GOVERNOR  OF  ILLINOIS 


@EN. 


N    BEHALF   OF   THE    CONDEMNED 
ANARCHISTS 


isasasasasasasasasasasasasasasasasaHasasasasasasasasasasasasasasasasasasasasaj 


.  2. 


IAS  IT  A  FAIR  TSIAL  ? 


AN  APPEAL  TO  THE  GOVERNOR  OF  ILLINOIS, 
BY  GEN.  M.  M.  TRUMBULL. 


Seven  men  are  now  lying  under  sentence  of  death  in  Chicago,  nominally 
for  murdef,  but  really  for  sedition,  out  of  which  it  is  alleged  the  murder 
grew.  It  is  averred  by  friends,  and  believed  by  many  enemies  of  the  con- 
demned men,  that  their  trial  was  unfair,  the  rulings  of  the  court  illegal,  and 
the  sentence  unjust.  The  decision  of  the  Supreme  Court  ends  the  trial  of 
the  Anarchists,  but  not  the  trial  of  the  judgment. 

These  men  are  sentenced  to  die  on  the  nth  day  of  November.  In  the 
gloom  of  this  impending  tragedy,  the  Governor  of  Illinois  rises  into  unpar- 
alelled  importance  as  the  highest  court  of  appeal.  He  is  called  upon  to 
3  say  whether  the  sentence  is  the  decree  of  justice,  or  a  judicial  mandate  of 
revenge.  Shall  the  "  Revenge  "  circular  of  May  4th  be  answered  by  another 
"  Revenge  "  circular  in  the  shape  of  a  judicial  opinion  ?  Shall  the  law  of 
the  land  be  driven  from  the  Court  House  by  the  law  of  retaliation  ?  The 
(V  Governor  must  decide. 

We  appeal  to  the  Governor  for  clemency  in  this  case  on  the  grounds  of 
<y  magnanimity  and  mercy,  but  not  on  them  alone.  We  appeal  to  him  that 
he  arrest  this  revengeful  judgment,  because  the  record  shows  that  none  of 
the  condemned  were  fairly  proven  guilty,  while  some  of  them  were  fairly 
proven  innocent;  not  innocent  of  sedition,  and  inflammatory  speech,  but 
innocent  of  murder. 

^2*7^^ 

It  has  been  contended  that  the  authority  of  the  Governor  over  a  judicial 
'    sentence  is  the  prerogative  of  mercy  alone  ;  and  that  all  questions  of  guilt 


II87I7S 


or  innocence,  of  justice  or  injustice,  have  been  settled  by  the  decision  of  the 
Supreme  Court.  This  is  a  mistake.  The  power  to  pardon  is  frequently 
judicial,  although  the  form  of  its  exercise  is  not.  It  is  true  that  the  Gov- 
•ernor  does  not  reverse  or  modify  the  judgments  of  the  courts,  except  in  the 
form  of  clemency,  yet  the  power  to  pardon  is  continually  exercised  as  a 
judicial  function  vested  in  the  chief  magistrate.  It  has  been  so  from  the 
earliest  times  in  England,  and  there,  as  here,  under  the  form  of  mercy, 
errors  of  the  courts  are  constantly  corrected  by  the  pardoning  power.  The 
case  of  John  Frost  will  serve  as  an  example : 

In  1839,  Frost,  Williams  and  Jones,  were  tried  in  Wales  for  high  treason. 
They  had  levied  war  against  the  Government.  They  had  led  a  mob  of  men 
to  attack  the  jail  at  Monmouth,  and  they  had  engaged  in  battle  with  the 
police  and  soldiers.  As  a  consequence  of  this  mad  enterprise  fifty  men 
were  killed.  There  was  no  question  about  the  guilt  of  the  accused,  and 
they  were  duly  sentenced  to  death.  After  the  trial  was  over,  it  was  claimed 
by  their  counsel  that  the  list  of  witnesses  for  the  Crown  had  not  been  handed 
to  the  prisoners  the  legal  number  of  days  before  the  trial.  This  point  was 
assigned  for  error,  and  it  was  referred  to  the  fifteen  judges  sitting  in  West- 
minster Hall.  Their  answer  was  : 

• 

"  ist.  A  majority  of  the  judges  in  the  proportion  of  nine  to  six  are  of 
opinion  that  the  delivery  of  the  list  of  witnesses  was  not  a  good  delivery  in 
point  of  law, 

But,  Secondly.  A  majority  of  the  judges  in  the  proportion  of  nine  to 
six  are  of  opinion  that  the  objection  to  the  delivery  of  the  list  of  witnesses 
was  not  taken  in  due  time." 

So  the  judgment  was  affirmed ;  but  the  Government  said  that  it  would 
never  do  to  hang  three  men,  however  guilty,  who,  at  their  trial,  were  deprived 
of  any  right  to  which  they  were  entitled  by  the  law,  although  the  prisoners 
themselves  had  waived  it  by  not  asking  for  it.  The  judges  having  con- 
fessed that  there  was  error  in  the  trial,  it  would  be  a  scandal  that  the  men 
should  suffer  death.  The  sentence  was,  therefore,  commuted  to  transporta- 
tion for  life.  In  the  Frost  case  the  commutation  of  the  sentence  was  a  ju- 
dicial act  exercised  in  the  form  of  clemency  under  the  pardoning  power. 

ERRORS    IN   THE   RECORD. 

In  the  present  case  the  Supreme  Court  of  Illinois  confesses  errors  in  the 
record,  and,  as  in  the  Frost  case,  decides  as  to  some  of  them  that  objection 
to  them  was  not  made  in  time.  For  instance,  in  the  matter  of  the  Most 
letter,  the  language  of  the  court  is  this  : 


"  The  objection  that  the  letter  was  obtained  from  the  defendant  by  an  un- 
lawful siezure  is  made  for  the  first  time  in  this  court.  It  was  not  made  on 
the  trial  in  the  court  below." 

As  a  technical  rule  of  practice  this  may  be  correct,  and,  perhaps,  binding 
on  the  Supreme  Court,  but  it  is  not  binding  on  the  Governor,  as  the  like 
decision  in  Frost's  case  was  not  binding  on  the  Crown.  Technicalities  in 
favor  of  life  should  be  liberally  allowed,  and  this  is  a  maxim  of  the  law- 
Technicalities  in  favor  of  death  have  a  ghastly  look ;  they  are  altogether 
shocking,  and  they  are  odious  in  the  law. 

In  the  deepest  tragedy  there  are  scenes  of  comedy.  So  in  this.  Scarcely 
had  the  Supreme  Court  handed  the  seven  men  to  the  Lord  High  Execution- 
er when  up  steps  Mr.  Justice  Mulkey,  a  member  of  the  Court,  and  with 
comic  paradox  passes  mortal  judgment  upon  the  decision  itself.  The  stab 
he  gives  it  is  fatal.  Here  is  what  he  says  : 

"  It  is  not  my  intention  to  offer  a  separate  opinion,  as  I  should  have  done. 
I  desire  to  avail  myself  of  this  occasion  to  say  that,  while  I  concur  in  the 
conclusions  reached,  and  also  in  the  general  views  as  entered  in  the  opinion 
filed,  I  do  not  wish  to  be  understood  as  holding  that  the  record  is  free  from 
error,  for  I  do  not  think  it  is." 

Which  is  to  say,  that  Mr.  Justice  Mulkey  agrees  to  the  conclusions,  but 
not  to  the  premises  on  which  they  are  founded.  He  agrees  to  the  general 
views  but  not  to  the  special  reasons.  He  is  neither  ethical  nor  logical,  for 
if  the  premises  are  bad,  the  conclusion  must  be,  at  least,  dubious.  If  the 
special  reasons  are  unsound  the  general  views  resulting  from  them  cannot 
sanctify  the  hanging  of  seven  men.  Judge  Mulkey's  concurrence  in  death 
for  the  Anarchists  on  general  principles  is  but  a  judicial  echo  of  the  angry 
clamor  of  the  streets.  "  They  didn't  have  a  fair  show,"  said  the  president 
of  a  vigilance  committee,  in  excuse  for  the  hanging  of  a  gang  of  bad  charac- 
ters, "  but  most  of  'em  was  guilty."  The  apology  was  weak. 

Judge  Mulkey  thinks  that  he  can  sanction  the  decision,  and  at  the  same 
time  sustain  his  reputation  as  a  lawyer,  by  disclaiming  all  responsibility  for  its 
errors.  He  knows  that  the  decision  becomes  authority  in  Illinois,  and  that 
it  will  be  enbalmed  in  the  "  Reports."  He  sustains  the  decision,  barring 
the  errors  in  it.  When  the  passions  of  this  hour  are  gone,  when  the 
seven  men  are  silent  in  the  grave,  when  the  bar  of  Illinois  is  laughing 
at  the  decision  as  a  legal  statement,  Judge  Mulkey  reserves  the  right  to  say,. 
"  I  told  you  so  at  the  time ;  I  said  then  that  errors  were  in  the  record ; 
these  that  you  ridicule  are  the  errors  that  I  meant*"  This  resource  cannot 


avail  him,  because  he  is  not  brave  enough  to  expose  in  a  separate  opinion 
the  errors  he  confesses.  Chief  Justice  Pilate  confessed  that  there  were 
errors  in  the  trial,'  and  even  washed  his  hands  of  the  judgment,  but  the 
stain  remains  for  ever.  Mr.  Justice  Mulkey  consents  to  the  death  of 
seven  men  under  a  judgment  which,  although  legally  defective  and  infirm, 
is  good  enough  for  them.  The  intimation  of  Mr.  Justice  Mulkey  that  he 
has  a  dissenting  opinion  in  his  mind,  which  he  declines  to  spread  upon  the 
record,  is  of  itself  a  full  justification  for  interference  by  the  Governor  of  the 
State. 

THE  ODDS  AGAINST  THE  PRISONERS. 

In  the  trial  of  the  Anarchists  the  law  itself  was  bent  and  strained  to  the 
breaking  point.  On  the  floor  of  the  Court  House  they  stood  at  a  perilous 
disadvantage.  The  scales  of  justice  were  not  poised  evenly  between  the 
accused  and  the  State.  They  were  poor ;  the  prosecution  rich.  The  whole 
machinery  of  the  city  and  county  government  was  at  the  service  of  the 
prosecution.  The  treasury  was  reckless  of  cost.  The  police  force,  the  de- 
tective force,  and  every  official  influence  were  active  against  the  prisoners. 
They  were  beaten  from  the  start.  In  the  arena  of  life  or  death  they 
fought  against  odds  unfair  and  invincible.  They  played  for  a  jury  with 
dice  loaded  against  them.  The  indictment  was  a  bewildering  contradiction 
of  sixty-nine  discordant  counts,  and  every  count  was  the  horn  of  a  di- 
lemma. If  Schnaubelt  threw  the  bomb,  says  the  Supreme  Court,  you  are 
guilty  as  his  accomplices,  because  the  indictment  alleges  that  Schnaubelt 
threw  it.  If  Schnaubelt  did  not  throw  the  bomb,  as  you  have  tried  to 
show,. then  the  case  of  the  State  is  proved,  because  the  indictment  says  that 
it  was  not  thrown  by  him,  but  by  an  unknown  person.  The  exact  language 
of  the  Court  is  this : 

"  All  the  proof  introduced  by  the  defendants  thus  tending  to  show  that 
Schnaubelt  did  not  throw  the  bomb  tended  also  to  prove  that  an  unknown 
person  threw  it." 

From  a  dilemma  like  that  escape  is  hopeless.  Evidence  and  its  contra- 
diction are  alike  fatal  to  the  accused.  From  a  labyrinth  of  sixty-nine 
counts  the  most  experienced  pilot  cannot  extricate  the  prisoners.  There  is 
not  a  guide  either  in  legal  or  moral  philosophy  that  can  show  the  way  out. 
On  this  subject  the  rebuke  of  Lord  Chief  Justice  Denman,  in  delivering 
judgment  in  the  O'Connell  case,  may  be  quoted  with  approbation.  He  said  : 


5 

"  I  must  take  the  liberty  to  throw  out  an  observation  that,  in  my  opinion, 
there  cannot  be  a  much  greater  grievance  or  oppression  than  these  endless, 
voluminous  and  unintelligible  indictments.  The  indictment  which  fills 
fifty-seven  folio  pages  is  an  abuse  to  be  put  down,  not  a  practice  to  be  en- 
couraged." 

In  the  O'Connell  case  there  were  eight  defendants,  as  in  the  Anarchist 
case,  and  they  also  were  imprisoned  in  the  convolutions  and  sinuosities  of  an 
indictment  with  many  counts,  "endless,  voluminous  and  unintelligible." 
The  indictment  which  drew  from  Lord  Denman  that  indignant  criticism 
contained  only  eleven  counts,  while  that  against  the  Anarchists  contained 
sixty-nine.  This  is  a  six-fold  greater  "  grievance  and  oppression  "  than  the 
indictment  in  the  O'Connell  case,  and  the  wrong  is  multiplied  a  thousand 
fold  when  we  remember  that  the  Anarchists  were  on  trial  for  their  lives, 
while  in  the  O'Connell  case  the  offense  charged  was  only  a  misdemeanor 
punishable  by  imprisonment  and  fine. 

THE  WRONG  OF  REFUSING  SEPARATE  TRIALS. 

As  if  the  tortuosities  of  the  indictment  were  not  sufficiently  complicated, 
they  were  again  multiplied  by  eight  when  the  court  refused  a  separate  trial 
to  each  of  the  defendants.  There  is  not  another  State  trial  in  the  history 
of  political  prosecutions  where  eight  men  were  tried  together  for  their  lives 
on  an  indictment  containing  sixty-nine  counts.  There  is  not  an  enlightened 
nation  on  the  globe  that  would  permit  it,  and  if  such  a  trial  can  legally 
hang  a  man  in  Illinois,  her  civilization  needs  hurrying  up.  Will  the  Gov- 
ernor permit  this  "  grievance  and  oppression  "  to  prevail ;  he  alone  can  save 
the  character  of  the  State  from  the  frenzy  of  the  law.  We  ask  the  Gov- 
ernor for  clemency,  and  we  base  our  petition  on  the  right  of  every  man  to 
a  fair  an  impartial  trial. 

The  Supreme  Court  decides  that  the  matter  of  separate  trials  is  within  the 
discretion  of  the  court  below,  to  allow  them  or  deny  them.  True,  but  this 
is  a  judicial  discretion,  not  an  arbitrary  power ;  a  discretion  subject  to  be 
reviewed  by  the  Supreme  Court,  and  corrected  wherever  its  exercise  has  been 
oppressive  or  unjust.  It  is  a  discretion  that  may  be  reviewed  by  the  Gov- 
ernor of  the  State,  when  by  its  operation  the  lives  of  seven  men  are  placed 
in  jeopardy.  The  joinder  of  the  defendants  made  the  testimony  against 
each  avail  against  all.  It  practically  deprived  them  of  the  benefit  of  each 
other's  testimony  ;  it  embarrassed  them  at  every  step  of  the  trial,  and  it  con- 
fused the  jury,  who  never  even  tried  to  sift  the  evidence  or  apply  it.  In 


6 

hopeless  bewilderment  they  contented  themselves  with  a  hurried  verdict  of  guil- 
ty "  as  charged  in  the  indictment,"  an  indictment  which  alleged  the  killing 
of  Degan  in  sixty-nine  different  ways.  They  never  read  the  indictment,  for 
they  were  not  out  long  enough  to  do  so. 

By  trying  the  defendants  all  together,  nearly  every  piece  of  evidence 
against  them  separately  was  multiplied  by  eight.  For  instance,  a  public 
speech  made  by  Parsons  in  February,  1885,  is  made  evidence  against 
Fielden  and  six  other  men  on  trial  for  a  murder  committed  in  May,  1886- 
So,  a  public  speech  made  by  Fielden  in  March,  1885,  is  made  evidence 
against  Parsons  and  six  others  in  the  same  way.  Old  editorial  articles  by 
Spies  were  made  evidence  against  Parsons  and  the  other  six,  while  editorials 
by  Parsons  were  transmuted  into  testimony  against  Spies.  The  defendants 
were  weighted  down  with  hundreds  of  criminations,  which,  having  refer- 
ence to  only  one  of  them,  were  made  to  bear*upon  them  all.  Says  the  Court : 

"  Spies,  Schwab,  Parsons  and  Engel  were  responsible  for  the  articles 
written  and  published  by  them  as  above  shown.  Spies,  Schwab,  Fielden, 
Parsons  and  Engel  were  responsible  for  the  speeches  made  by  them  respec- 
tively." 

Here  Fielden,  whose  name  appears  not  in  the  first  sentence,  is  ingenious- 
ly woven  into  the  mixture  of  writing,  publishing  and  speaking,  although  he 
never  wrote  or  published  anything. 

If  it  is  pretended  that  the  jury  applied  the  evidence  to  the  defendants 
'  'respectively,"  the  proof  is  absolutely  conclusive  that  they  did  not.  It  was 
impossible  for  them  to  do  so  in  the  short  time  occupied  by  them  in  deliber- 
ation. In  that  short  time  they  could  not  have  reviewed,  compared  or  ap- 
plied the  evidence  either  to  the  counts  in  the  indictment,  or  to  the  defend- 
ants "  respectively." 

The  Supreme  Court  itself  was  compelled  to  recognize  the  illegal  charac- 
ter of  the  testimony  above  described,  although  in  an  apolegetic  way.  The  con- 
fession and  apology  of  the  court  is  in  these  words : 

"  Declarations  that  are  merely  narrative  of  what  has  been  done  or  may 
be  done,  are  incompetent,  and  should  not  be  admitted  except  as  against  the 
defendant  making  them,  or  in  whose  presence  they  are  made.  The  utter- 
ances of  the  defendant  Spies,  whether  in  his  paper,  his  speeches  or  his  con- 
versation, were  in  furtherance  of  the  purposes  and  objects  of  the  conspiracy 
in  which  he  was  engaged.  If  testimony  as  to  expressions  used  by  him, 
that  are  not  of  the  character  here  indicated,  has  crept  into  the  record,  it  is 
so  inconsiderable  that  it  could  not  in  any  way  have  injured  the  other  de- 
fendants." 


Unfortunately  a  great  deal  of  testimony  "  not  of  the  character  indi- 
cated "  was  admitted,  not  only  against  the  defendant  making  them,  but 
against  all  the  others.  It  is  a  violent  assumption  that  it  could  not  have  in- 
jured the  others  when  it  is  remembered  that  the  jury  did  not  attempt  to  sift 
the  evidence  and  attach  each  piece  of  it  to  the  particular  defendant  impli- 
cated by  it.  Other  errors  are  mildly  rebuked  for  having  '*  crept  "  into  the 
record.  They  did  not  creep  in.  They  were  crowded  in  against  the  protest 
of  the  defendants  and  to  their  serious  injury.  By  trying  eight  men  together 
on  an  indictment  of  sixty-nine  counts,  the  door  was  thrown  wide  open,  and 
errors  did  not  have  occasion  to  creep  in.  They  were  invited  in  and  wel- 
comed. The  court  reasons  as  if  the  defendants  insisted  on  a  joint  trial,  and 
are  therefore  responsible  for  the  illegal  consequences.  The  prosecution  is 
responsible,  not  the  prisoners. 

The  arbitrary  joinder  of  the  defendants  virtually  deprived  them  of  the 
benefit  of  each  other's  testimony.  This  is  not  contradicted  by  saying  that  they 
were  offered  as  witnesses  and  allowed  to  testify.  Their  testimony  was  dis- 
credited by  the  jury,  and  the  Supreme  Court  intimates  that  the  jurors  were 
justified  in  disregarding  it,  because  the  men  were  on  trial  for  their  lives,  and 
therefore  interested  enough  to  speak  falsely.  Thus  in  referring  to  Fielden's 
testimony  the  court  says  : 

"  It  was  for  the  jury  to  determine  whether  he  told  the  truth  or  not.  They 
had  a  right  to  consider  that  he  was  on  trial  for  murder," 

All  through  the  argument  in  the  trial  below,  the  jury  were  urged  by  coun- 
sel for  the  State  to  disbelieve  the  testimony  of  the  defendants,  because  they 
were  on  trial.  Here  again  the  prosecution  takes  advantage  of  its  own 
wrong.  Having  joined  the  defendants  in  the  trial  against  their  earnest 
protest,  the  State  urges  its  own  wrong  doing  as  a  reason  for  disbelieving  them. 
Had  they  been  separately  tried,  this  reason  would  not  have  existed  except 
as  to  the  value  of  each  man's  testimony  for  himself.  Each  man  not  on 
trial  would  have  been  a  credible  witness  for  the  others.  At  all  events,  it 
could  not  have  been  objected  to  his  testimony  that  he  was  on  trial  for  his 
life. 

UNFAIR    TACTICS    OF   THE   STATE'S    ATTORNEY. 

The  course  pursued  by  the  counsel  for  the  State  was  unfair  throughout 
the  trial.  A  few  examples  of  the  strategy  and  tactics  they  employed  will 
prove  this  accusation.  They  were  permitted  to  imitate  Mark  Antony  when 

be  inflamed  the  passions  of  tb§  Roman  populace  by  pointing  them  to 


"  Caesar's  vesture  wounded."  They  were  permitted  to  show  the  jury  no 
only  the  wounded  vesture  of  Matthias  Degan,  but  also  that  of  several  other 
men  whose  names  were  not  in  the  indictment  at  all.  They  were  permitted 
to  call  the  attention  of  the  jury  to  the  blood  upon  the  vesture  after  the  style 
of  Antony,  when  he  said  : 

"  See  what  a  rent  the  envious  Casca  made, 

Through  this,  the  well-beloved  Brutus  stabbed, 

And  as  he  plucked  his  cursed  steel  away, 
Mark  how  the  blood  of  Csesar  followed  it." 

The  artful  stump  speech  of  Antony  was  perfectly  legitimate.  It  was  not 
made  in  a  judicial  proceeding,  but  in  a  political  contest.  He  was  of  the 
opposite  party  to  that  of  Brutus.  The  struggle  between  them  was  for  the 
possession  of  the  offices  and  the  control  of  the  government ;  but  had 
Antony  been  State's  Attorney,  prosecuting  Brutus  and  Cassius  under  an 
indictment  for  the  murder  of  Caesar,  the  Roman  judges  would  not  have 
allowed  him  to  practice  before  a  jury  in  the  Court  House  the  methods  he 
employed  in  the  streets  before  a  mob.  The  object  of  Antony  in  Caesar's 
case,  and  of  the  counsel  for  the  people  in  Degan's  case,  were  alike  to  excite 
feelings  of  anger  and  revenge  in  the  men  they  were  talking  to,  the  jury  in 
the  one  case,  the  mob  in  the  other.  There  was  no  dispute  whatever  about 
the  manner  of  Degan's  death,  and  therefore  the  exposure  of  his  wounded 
vesture  to  the  jury  was  useless  and  superfluous,  except  as  an  appeal  for 
vengeance.  The  Supreme  Court,  unwilling  to  sanction  such  a  method,  finds 
a  weak  excuse  for  it,  and  mildly  rebukes  it,  thus : 

"  The  articles  in  question  were  presented  in  the  condition  in  which  they 
were  left  after  being  exposed  to  the  force  of  an  exploding  bomb,  for  the 
purpose  of  showing  the  power  of  dynamite  as  an  explosive  substance.  While 
this  kind  of  testimony  may  not  have  been  very  material,  we  cannot  see  that 
it  was  to  such  an  extent  incompetent  as  to  justify  a  reversal." 

No,  it  is  not  pretended  that  every  error  is  enough  of  itself  to  justify  a 
reversal,  but  when  the  errors  are  multitudinous,  as  they  are  in  this  case,  a 
new  trial  ought  to  have  been  allowed.  The  power  of  dynamite  as  an 
explosive  substance  was  not  in  issue.  It  was  conceded  that  dynamite  was 
an  explosive  substance,  and  that  a  dynamite  bomb  killed  Degan.  The 
jury  knew  that  dynamite  was  an  explosive  substance.  They  knew  it  as 
well  before  the  torn  and  bloody  clothing  was  exhibited  as  they  did  after- 
ward. Mark  Antony  could  as  pertinently  say  that  he  showed  the  rent 


9 

vesture  of  Caesar  to  convince  the  people  that  daggers  had  the  power  to  cut. 
The  excuse  fails  ;  the  purpose  of  the  exhibition  is  too  plain. 

The  counsel  for  the  State  were  permitted  to  put  leading  questions  to  their 
own  witnesses,  notably  to  Gilmer,  the  most  rickety  witness  of  all.  He 
swore  that  he  saw  the  bomb  thrown,  and  could- recognize  the  man  who 
threw  it.  A  portrait  of  Schnaubelt  was  handed  to  him,  and  he  was  asked 
if  that  was  the  man.  His  answer  was,  "  I  say  that  is  the  man  that  threw 
the  bomb  out  of  the  alley."  The  question  was  leading,  for  it  lead  the  wit- 
ness at  once  to  the  desired  answer,  yes.  The  offer  of  the  picture  by  itself 
for  identification  was  unfair.  It  should  have  been  mixed  with  others  and 
the  witness  required  to  select  the  portrait  of  Schnaubelt,  without  aid  or  sug- 
gestion from  anybody.  So  he  was  permitted,  in  a  theatrical  way,  to  point 
out  Spies  as  the  man  who  lighted  the  fuse.  This  was  all  done  after  the 
style  and  manner  of  the  minor  theaters  where  the  villain  of  the  play  is  ac- 
cidentally identified  by  a  stranger  who  suddenly  appears  upon  the  scene. 
It  is  amazing  that  the  Supreme  Court  allowed  itself  to  be  imposed  upon  by 
this  bit  of  melodrama.  Here  is  the  way  the  scene  is  described  in  the  writ- 
ten opinion  : 

"  When  shown  a  photograph  of  Schnaubelt,  he  said  :  '  I  say  that  is 
the  man  that  threw  the  bomb  out  of  the  alley.'  When  asked  who  the  man 
was  that  came  from  the  wagon  towards  the  group  referred  to,  and  lighted 
the  match,  he  pointed  to  the  defendant  Spies,  and  said,  '  that  is  the  man, 
right  there.'  " 

This,  if  natural,  would  be  impressive,  but  it  was  entirely  mechanical  and 
artificial.  As  the  mummery  of  stage  identification  is  rehearsed  behind  the 
scenes,  so  was  this.  The  witness  had  rehearsed  his  part,  and  very  likely  had 
studied  the  picture.  It  had  been  shown  to  the  witnesses  for  the  State  by 
the  Assistant  District  Attorney,  in  his  own  office,  and  it  is  morally  certain 
that  it  had  been  shown  to  Gilmer.  So,  as  to  Spies.  Gilmer  had  seen  the 
prisoners  day  after  day,  and  knew  them  all.  A  performance  which  could 
impress  a  calm  judicial  body  like  the  Supreme  Court  must  have  made  a  still 
greater  impression  on  the  jury. 

It  is  shown  by  a  chain  of  impartial  circumstances  that  the  testimony  of 
Gilmer  cannot  possibly  be  true.  He  is  contradicted  by  the  positive  testimo- 
ny of  a  great  many  witnesses  for  the  defense.  He  is  contradicted  by  the 
negative  testimony  of  witnesses  for  the  prosecution.  His  testimony  and 
theirs  cannot  be  reconciled.  His  testimony  is  inconsistent  with  itself,  and 
it  is  contradicted  by  inanimate  witnesses  that  cannot  lie, — the  street,  the  alley, 
the  houses  in  the  neighborhood  of  the  tragedy,  the  wagon,  the  pile  of  lum? 


10 

. 

ber,  and  the  stature  of  Schnaubelt.  These  all  bear  witness  that  the  testi- 
mony of  Gilmer  is  not  true.  It  is  impossible  that  the  counsel  for  the  State 
could  have  believed  it  at  the  close  of  the  trial,  though  they  may  have  be- 
lieved it  at  the  beginning.  Notwithstanding  its  demonstrated  falsity  the 
testimony  of  Gilmer  was  played  on  the  jury  with  great  ingenuity.  It  was 
reinforced  from  Des  Moines  so  that  it  might  last  until  the  rendition  of  the 
verdict.  Its  importance  to  the  State  was  very  great,  for  it  was  the  only 
thread  that  connected  any  one  of  the  defendants  with  the  actual  throwing  of 
the  bomb,  and  though  it  was  weak  as  the  thread  of  smoke  that  rises  from 
the  burning  end  of  a  cigar,  it  played  an  awful  part  in  the  doom  of  seven 
men.  More  than  any  other  part  of  the  secondary  evidence,  it  controlled  the 
jury ;  and  although  the  Supreme  Court  evidently  distrusted  it,  and  even 
disbelieved  it,  the  tremendous  judgment  of  the  court  tries  to  rest  upon  it. 
Uneasy  there,  it  throws  the  responsibility  upon  the  jury,  and  seeks  a  foun- 
dation somewhere  else.  Here  is  the  nervous  expression  of  the  Court : 

"  There  is  a  mass  of  testimony  in  the  record  in  reference  to  the  state- 
ments made  by  Thompson  and  Gilmer.  Some  of  this  testimony  sustains 
those  statements  and  some  of  it  discredits  them.  It  is  sufficient  to  say  that 
it  is  very  conflicting.  It  was  the  province  of  the  jury  to  pass  upon  it.  They 
had  a  right  to  consider  it  in  connection  with  all  the  other  facts  and  circum- 
stances in  the  case.  It  is  not  necessary  for  us  to  pass  any  opinion  upon  it, 
as  we  think  there  is  evidence  enough  in  the  record  to  sustain  the  finding  of 
the  jury  independently  of  the  testimony  of  Thompson  and  Gilmer." 

In  the  presence  of  reasoning  like  that  the  imperilled  citizen  stands  paral- 
ized  and  helpless.  If  it  is  not  necessary  to  pass  any  opinion  upon  disputed 
testimony  which  influenced  a  jury  to  condemn  seven  men  to  death,  than 
such  a  duty  never  can  be  necessary  in  any  case.  "  Not  necessary  to  pass 
any  opinion  !  "  Why,  one  thousand  words  of  the  decision  is  given  to  the 
testimony  of  Gilmer  alone.  And  every  word  of  the  thousand  is  an  expres- 
sion of  opinion.  Every  word  of  it  is  adverse  to  the  defendants,  and  the 
benefit  of  every  doubt  is  given  to  the  State.  In  those  thousand  words,  are 
these : 

"  Witnesses  for  the  defense  identified  mostly  with  the  International  organi- 
zation, and  from  whom  the  shots  fired  at  the  police  must  have  come." 

What  is  that  but  the  expression  of  an  opinion  adverse  to  the  witnesses 
who  contradicted  Gilmer  ?  It  is  hardly  a  judicial  expression  either,  for  it 
shows  feeling  on  the  part  of  the  Court.  The  genuine  opinion  of  the  Su- 
preme Court  that  the  testimony  of  Gilmer  was  worthless  glimmers  in  the 


11 

concluding'  sentence,  "  There  is  enough  to  sustain  the  finding  independently 
of  the  testimony  given  by  Thompson  and  Gilmer." 

THE    PROVINCE   OF   THE   JURY. 

Whenever  the  evidence  is  weak,  false,  contradictory,  improbable,  or 
impossible,  redress  is  denied  on  the  ground  that  it  was  "  the  province  of  the 
jury  "  to  act  upon  it  in  their  own  way.  This  testimony  is  important  if  true, 
reasons  the  Supreme  Court,  unimportant  if  false  ;  there  is  enough  without  it. 

In  that  very  dangerous  way,  a  jury  manifestly  unfriendly  to  the  defendants 
is  made  sole  critic  of  the  evidence.  It  is  in  the  appeal  of  the  defendants 
that  the  jury  itself  was  not  "  impartial,"  that  it  was  a  class  jury,  not  fairly 
chosen  from  "  the  body  of  the  county,"  that  care  was  taken  to  select  persons 
hostile  to  the  accused  even  from  the  classes  drawn  upon,  and  that  the  State 
was  allowed  a  greater  number  of  challenges  than  the  law  intended  ;  a  num- 
ber, which,  whether  legal  or  not,  gave  the  prosecution  an  unfair  advantage. 
Yet  this  jury  is  given  absolute  ownership  of  the  evidence  in  the  case,  to  use 
it  at  their  own  discretion  for  one  side  and  against  the  other,  even  to  the 
hanging  of  seven  men.  The  Supreme  Court  abdicates  its  power  to  pass 
upon  the  character,  quality,  and  sufficiency  of  evidence  in  the  most  impor- 
tant case  ever  tried  in  the  State  of  Illinois.  This  in  tiresome  phraseology 
repeated  over  and  over  again. 

"  The  jury  were  warranted  in  believing  that  the  bomb  was  made  by 
Lingg ;  "  "  the  juty  were  warranted  in  believing  that  the  Haymarket  meet- 
ing was  not  intended  to  be  peaceable  ;  "  '•  the  jury  were  warranted  in  believ- 
ing that  the  bomb  was  thrown  and  the  shots  fired  as  a  part  of  the  exe- 
cution of  the  conspiracy  ; "  "  it  was  for  the  jury  to  say  whether  the  evidence 
for  the  defense  was  more  worthy  of  belief;  "  "  the  jury  had  the  right  to  look 
at  it  in  the  light  of  the  principles  advocated  by  the  international  organiza- 
tion ;  "  "  it  was  for  the  jury  to  say  how  far  that  fatal  result  may  have  been 
brought  about  through  the  influence  of  the  utterances  put  forth  by  the  organs 
here  designated  ;  "  the  jury  were  warranted  in  believing  that  Parsons  was 
associated  with  the  man  who  threw  the  bomb  ;  "  "  it  was  for  the  jury  to  say 
whether  any  others,  than  the  members  of  that  conspiracy  had  undertaken  to 
make  such  weapons  ; "  an  so  on,  in  monotonous  formulary,  page  after  page. 
A  jury  which  the  defendants  allege  was  not  impartial  is  made  infallible  judge 
of  the  legal  and  moral  quality  of  all  the  evidence. 

In  selecting  a  jury  to  try  the  Anarchists  the  principle  of  impartiality  was 
violated.  The  form  of  the  statute  may  have  been  observed,  but  the  spirit 
of  the  law  was  not.  Whole  classes  of  qualified  persons  were  stricken  from 


the  jury  lists,  or  at  least,  they  were  not  summoned  in  the  case,  which  amounts 
to  the  same  thing.  Unfortunately  these  were  what  are  known  as  the  "  work- 
ing classes,"  the  classes  to  which  the  defendants  belonged,  and  of  which, 
in  part,  they  were  supposed  to  be  representative  in  socialistic  and  political 
opinions.  These  were  disqualified  for  jurymen  as  effectually  as  if  they  had 
been  disfranchised  altogether.  The  whole  machinery  of  legal  adminis- 
tration was  in  the  hands  of  the  prosecution  ;  and  a  common  bailiff,  a  sub- 
ordinate part  of  that  machinery,  was  made  absolute  dictator  aud  autocrat  of 
a  jury.  The  honest  safeguard  known  as  "drawing"  for  a  jury  was  not 
observed.  The  equal  chance  which  the  "  drawing"  of  jurors  from  a  list  of 
qualified  voters  gives  to  both  sides  was  not  given  to  the  defendants.  The 
jurors  were  not  "  drawn,"  but  "  summoned."  They  were  summoned  by  a 
mere  bailiff,  man  by  man,  at  his  own  arbitrary  will  and  pleasure.  After  he 
had  strained  and  filtered  the  jury  population  of  every  man  belonging  to  the 
same  classes  as  the. defendants,  the  prosecution  was  allowed  to  filter  even 
his  unfair  selection  by  120  peremptory  challenges.  Even  of  the  twelve  who 
tried  the  case,  nine  confessed  themselves  prejudiced  against  socialists,  an- 
archists, and  communists,  while  some  of  them  even  admitted  that  they  were 
prejudiced  against  the  defendants.  Yet  this  is  the  jury  "  whose  province 
it  was"  to  pass  upon  all  the  evidence,  and  who  were  "  warranted  in  believ- 
ing "  anything  against  the  defendants.  To  hang  men  on  the  verdict  of  a 
jury  thus  chosen  and  impanneled  will  be  a  stain  upon  the  jurisprudence  of 
Illinois  long  after  all  the  actors  in  the  drama  shall  have  passed  away. 

THE   CASE    OF    DANIEL   O'CONNELL. 

In  the  O'Connell  case  the  defendants  were  tried  in  Dublin  for  a  conspir- 
acy to  overthrow  the  British  Government  in  Ireland.  They  were  all  convicted 
and  sentenced  to  fine  and  imprisonment.  The  judgment  was  reversed  by 
the  English  House  of  Lords,  on  two  grounds,  one  of  which  was  that  the 
jury  had  not  been  fairly  selected,  for  that  certain  classes  of  jurymen  had 
been  omitted  from  the  jury  roll.  The  manner  of  doing  it  was  this  :  The 
Recorder  of  Dublin  had  made  out  the  jury  lists  as  required  by  law,  and  had 
returned  them  to  the  Sheriff  as  his  duty  was.  From  the  Sheriff's  office,  one 
list  containing  sixty  names  mysteriously  disappeared.  Of  the  defendants, 
seven  were  Roman  Catholics,  and  by  a  curious  coincidence  it  so  happened 
that  the  missing  list  was  a  list  of  Roman  Catholic  jurymen,  and  by  reason 
of  its  absence  no  Roman  Catholic  was  placed  upon  the  trial  jury.  In  other 
words,  men  of  the  same  religion  as  the  defendants  were  excluded  from  the 
jury.  The  defendants  challenged  the  array,  but  their  challenge  was  over- 


13 

ruled  for  the  reason  that  no  fraud  or  misconduct  was  charged  against  the 
Sheriff,  and  for  all  that  appeared,  the  missing  list  might  have  been  lost  by 
accident.  The  House  of  Lords  reversed  that  ruling  and  decided  that  the 
injury  and  wrong  to  the  defendants  were  the  same  whether  the  list  was 
absent  by  accident  or  design. 

It  was  in  passing  judgment  in  this  case  that  Lord  Chief  Justice  Denman 
used  that  remarkable  sentence  which  has  passed  into  our  proverbial  classics, 
"A  mockery,  a  delusion,  and  a  snare."  What  he  said  was  this  : 

"  If  it  is  possible  that  such  a  practice  as  that  which  has  taken  place  in  the 
present  instance  should  be  allowed  to  pass  without  remedy,  trial  by  jury 
itself,  instead  of  being  a  security  to  persons  who  are  accused,  will  be  a  MOCK- 
ERY, a  DELUSION  and  a  SNARE." 

In  regard  to  the  Sheriff's  responsibility  for  the  loss  of  the  jury  list,  Lord 
Denman  said  : 

"  The  defendants  have  challenged  the  array  on  account  of  the  fraudulent 
omission  of  sixty  names  from  the  list  of  jurors  of  the  county  of  Dublin.  It 
appears  to  me  that  that  challenge  ought  to  have  been  allowed.  I  think  that 
the  principle  of  challenge  to  the  array  is  not  confined  to  the  narrow  issue 
whether  the  Sheriff  has  done  wrong,  but  involves  that  larger  question 
whether  the  party  has  had  the  security  of  trial  by  a  lawful  jury  of  his  coun- 
try" 

To  allow  a  judgment  to  stand  on  a  verdict  rendered  by  such  a  jury,  Lord 
Denman  said — 

"  Would  have  the  effect  of  securing  success  to  the  worst  maneuvres,  and  of 
unsettling  public  confidence  in  the  most  important  function  of  justice." 

In  the  O'Connell  case,  only  fine  and  imprisonment  were  involved,  and 
yet  the  judgment  was  reversed  because  the  jury  list  had  been  mutilated  ;  in 
other  words,  because  all  classes  of  qualified  jurymen  were  not  represented  on 
the  lists  from  which  the  trial  jury  was  drawn.  In  the  Anarchist  case,  seven 
lives  are  involved,  and  the  jury  was  obtained  by  worse  maneuvres  than  the 
"worst  maneuvres"  employed  in  the  trial  of  O'Connell.  Although  more 
than  a  thousand  men  were  summoned,  several  wards  of  Chicago  were  ab- 
solutely excluded  from  representation  on  the  lists  from  which  the  summon- 
ses were  made.  Whole  classes  of  qualified  jurors  were  denied  a  represen- 
tation on  the  lists  by  the  arbitrary  decision  of  a  common  bailiff  of  the 
Court.  If  the  judgment  of  death  shall  be  permitted  to  stand  in  this  case  on 


14 

the  verdict  of  a  jury  selected  in  that  way,  and  from  a  jury  list  thus  mutila- 
ted, then,  indeed,  has  trial  by  jury,  instead  of  being  a  security  to  persons 
who  are  accused,  become  "  a  MOCKERY,  a  DELUSION  and  a  SNARE." 

THE  STATE  TAKES  ADVANTAGE  OF  ITS  OWN   WRONG. 

In  a  light  and  playful  way,  Mr.  Justice  Mulkey,  conceding  errors  in  the 
record,  talks  irony  to  the  condemned  men,  and  says,  "  Really,  so  many  of 
you  were  tried  together,  the  "  wonderment  "  is  that  the  errors  are  not  more 
numerous  than  they  are.  The  exact  language  of  Judge  Mulkey  is  this  : 

"  In  view  of  the  number  of  defendants  on  trial,  the  great  length  of  time 
consumed  in  the  trial,  the  vast  amount  of  testimony  offered  and  passed 
upon  by  the  Court,  and  the  almost  numberless  rulings  the  Court  was  re- 
quired to  make,  the  wonderment  to  me  is  the  errors  were  not  more  numer- 
ous and  of  a  more  serious  character  than  they  are." 

Thus  wrong  begets  wrong,  and  the  Supreme  Court  travels  in  a  circle  round 
and  round.  The  joinder  made  errors,  and  errors  are  excused  because  of  the 
joinder.  In  a  "  snare  "  like  that  seven  men  are  to  be  strangled.  The  joinder 
of  defendants  at  the  trial  was  the  act  of  the  State's  Attorney  himself,  yet  he 
was  permitted  to  take  advantage  of  it,  and  multiply  his  challenges  from  twenty 
to  one  hundred  and  sixty.  The  Supreme  Court  excuses  this  by  quoting  the 
letter  of  the  statute  : 

"  The  statute  says  that  the  attorney  prosecuting  on  behalf  of  the  people 
shall  be  admitted  to  a  peremptory  challenge  of  the  same  number  of  jurors 
that  the  accused  is  entitled  to.  We  cannot  see  how  language  can  be 
plainer  than  that.  It  explains  itself  and  requires  no  further  remark." 

Certainly  language  cannot  be  plainer  than  that,  but  the  statute  is  to  be 
construed,  not  according  to  its  language  alone,  but  according  to  its  logic- 
ally moral  meaning,  or  as  Blackstone  has  it,  "  according  to  the  reason  and 
spirit  of  the  law."  It  never  was  the  reason  and  spirit  of  the  law  that  a 
prosecuting  attorney  should  be  allowed  to  multiply  his  own  challenges  at 
will  by  joining  at  his  own  pleasure  a  large  number  of  defendants  in  one 
indictment,  and  then  insisting  upon  it  that  they  all  be  tried  together.  The 
statute  means  by  "  the  accused  "  one  defendant,  and  it  recognizes  in  the  prose- 
cution only  one  accuser.  The  prosecution  may  multiply  the  number  of  de- 
fendants by  joining  them  together  in  an  indictment,  but  it  cannot  multiply 
itself  by  its  own  arbitrary  act  and  will,  kavv,  or  no{  Jaw,  the  allowance  ef 


15 

160  peremptory  challenges  to  the  prosecution  was  a  "  grievance  and  oppres- 
sion." It  was  1 60  challenges  against  each  of  the  defendants,  while  they 
were  allowed  only  20  each  against  the  State.  It  is  very  true  that  the  pros- 
ecution used  only  about  60  of  the  peremptory  challenges  allowed  them, 
while  the  defendants  exhausted  all  of  theirs,  but  this  itself  is  evidence  that 
the  talesmen  selected  by  the  bailiff  were  favorable  to  the  State  and  hostile 
to  the  defendants. 

THE  SPEECHES  TO  THE,  JURY. 

The  speeches  to  the  jury  were  appeals  for  vengeance  on  the  prisoners.  They 
were  anarchy  in  legal  robes,  vindictive  and  crimson  as  the  speeches  for 
which  the  defendants  themselves  were  tried.  The  moral  discipline  of  the 
bar  was  broken,  and  the  ethics  of  the  profession  lowered  when  the  State's 
Attorney  condescended  to  pour  angry  invective  and  personal  reproaches  up- 
on men  powerless  to  reply.  The  dignity  of  the  legal  profession  shriveled  up 
when  the  counsel  for  the  people  offered  fact-statements  to  the  jury  free 
from  the  guards  and  sanctions  of  an  oath,  and  free  from  the  test  of  cross- 
examination.  Worse  than  all,  the  very  genius  of  advocacy  looked  mendi- 
cant and  ragged  when  the  State's  Attorney  begged  for  a  verdict  on  the 
niggling  plea  that  the  State  had  no  appeal  from  acquittal,  while  from  a 
judgment  of  guilty  the  defendants  could  appeal  fora  reversal  to  the  Su- 
preme Court,  or  to  the  Governor  for  a  mitigation  of  the  sentence.  This 
was  almost  a  promise  that  a  death-sentence  having  served  as  an  example 
and  a  warning,  the  death  penalty  would  not  be  inflicted.  "  Gentlemen  of 
the  jury,  their  blood  be  upon  us  and  upon  our  children,  not  upon  you."  It 
was  illegal  for  the  State's  Attorney  to  absolve  the  jury  from  any  portion  of 
responsibility  for  the  sentence  of  death. 

There  is  a  lofty  and  humane  contrast  to  all  that  in  a  great  state  trial 
mentioned  in  the  History  of  England  ;  the  trial  of  Ashton,  Elliott  and  Lord 
Viscount  Preston,  for  high  treason,  in  the  reign  of  William  III.  It  is 
eloquently  described  in  Macauley's  fourth  volume,  and,  although  it  has  al- 
ready been  quoted  in  a  Chicago  periodical,  it  will  bear  repeating  here. 

"  Early  in  January,  Preston,  Ashton  and  Elliott  had  been  arraigned  at  the 
Old  Bailey.  They  claimed  the  right  of  severing  in  their  challenges.  It 
was,  therefore,  necessary  to  try  them  seperately.  A  considerable  number  of 
judges  appeared  on  the  bench,  and  Holt  presided.  The  Solicitor  General, 
Somers,  conducted  the  prosecutions  with  a  moderation  and  humanity  of 
which  his  predecessors  had  left  him  no  exajnple.  '  I  did  never  think,'  he  said, 
'  that  it  was  the  part  of  any  who  were  of  counsel  for  the  King  in  cases  of 
this  nature  to  aggravate  the  crime  of  the  prisoners,  or  to  put  false  colors  on 


16 

the  evidence.'  Holt's  conduct  was  faultless.  Pollexfen,  an  older  man  than 
Holt  or  Somers,  retained  a  little — and  a  little  was  too  much — of  the  tone  of 
that  bad  school  in  which  he  had  been  bred.  The  prisoners  themselves 
seem  to  have  been  surprised  by  the  fairness  and  gentleness  with  which  they 
were  treated.  '  I  would  not  mislead  the  jury,  I'll  assure  you,'  said  Holt  to 
Preston,  '  nor  do  you  any  manner  of  injury  in  the  world.'  '  No,  my  Lord,' 
said  Preston,  '  I  see  that  your  Lordship  would  not.'  '  Whatever  my  fate 
may  be,'  said  Ashton,  '  I  cannot  but  own  that  I  have  had  a  fair  trial  for  my 
life.'  " 

Whatever  their  fate  may  be,  the  condemned  Anarchists  cannot  say  that 
they  have  had  a  fair  trial  for  their  lives.  Their  wives  and  children  cannot 
say  so  ;  no  friend  of  theirs  can  say  so  ;  and  no  enemy  who  has  calmly 
studied  the  case.  The  plea  for  their  death  is  that  they  are  enemies  of 
society,  who  may  beneficially  be  destroyed.  'Anarchy  is  on  trial,"  said 
the  State's  Attorney  to  the  jury,  and  the  verdict  was  responsive  to  the  ap- 
peal. Vengeance  is  mine,  says  Populus,  and  I  will  repay.  What  matters 
it  whether  the  seven  are  specifically  guilty  of  the  Haymarket  affair  or  not  ? 
They  are  guilty  of  anarchy,  and  for  anarchy  they  are  condemned.  For 
many  months,  remarks  Populus,  they  have  challenged  me  to  play  a  game 
of  murder,  and  I  demand  all  the  stakes  I  have  won.  There  is  force  in  this 
claim,  and  good  barbarian  logic.  Had  Populus  exacted  prompt  payment 
through  a  vigilance  committee,  criticism  would  have  been  light  and  transient, 
but,  having  a  choice  of  tribunals,  Populus  chose  the  court  house,  and  is 
bound  by  the  rules  of  the  forum  he  selected.  When  he  took  his  enemies 
before  a  jury  he  promised  them  a  fair  trial  according  to  the  laws  of  the  land, 
and  by  that  promise  Populus  is  bound. 

THE  JURY  REQUESTED  TO  RECONCILE  THE  INSTRUCTIONS  OF  THE  COURT. 

Not  only  did  the  jury  have  despotic  power  over  the  evidence,  but  they 
were  made  critics  and  reviewers  of  the  trial  court  itself.  It  was  assumed 
by  the  Supreme  Court  that  the  jury  not  only  had  knowledge  and  wisdom 
enough  to  separate  good  law  from  bad  law,  correct  instructions  from  erroneous 
ones,  but,  also,  that  they  actually  made  the  separation  and  acted  on  the 
good  law  and  the  correct  instructions  only.  On  this,  as  on  other  points,  the 
benefit  of  all  doubt  is  given  to  the  State.  The  proof  of  this  is  found  in  the 
decision  itself.  Here  is  the  language  of  the  Supreme  Court,  which  assumes 
that  the  jury  had  legal  knowledge  greater  than  the  trial  judge,  and  in  dis- 
criminating between  the  right  and  the  wrong  did  whatever  was  proper  to  be 
done. 


17 

"  As  to  the  first  objection,  if  we  construed  the  instruction  to  mean  what 
counsel  claim  it  to  mean,  we  would  be  forced  to  agree  with  them  that  it  was 
erroneous.  It  is  the  duty  of  the  jury  to  consider  all  the  instructions  together, 
and  when  this  Court  can  see  that  an  instruction  in  the  series,  although  not 
stating  the  law  correctly,  is  qualified  by  others,  so  that  the  jury  were  not 
likely  to  be  misled,  the  error  will  be 'obviated." 

In  that  paragraph  is  an  assumption  that  the  jury  were  competent  to  con- 
sider all  the  instructions  together,  and  to  strike  out  those  "  not  stating  the 
law  correctly"  and  it  is  also  conclusively  assumed  that  they  did  discriminate 
between  the  good  instructions  and  the  bad.  Unfortunately,  the  sudden 
agreement  on  a  verdict  proves  that  the  jury  did  not  consider  all  the  in- 
structions together,  but  only  those  fringed  with  the  sombre  embroidery  of 
death. 

In  another  place  the  Supreme  Court  says  this  : 

"Therefore,  the  instruction  fairly  interpreted  means  that  the  persons  ad- 
vised to  commit  murder  were  the  working  men  belonging  to  and  acting  with 
the  International  group," 

There  again  it  is  concluded  beyond  a  reasonable  doubt  that  the  instruction 
was  "fairly  interpreted"  by  the  jury,  while  the  verdict  and  the  swiftness  of  it 
are  witnesses  to  the  contrary. 

Another  important  instruction  of  doubtful  character  the  Supreme  Court 
holds  was  made  harmless,  if  not  sound,  by  comparing  it  with  healthier  and 
more  legitimate  instructions.  These  "qualified"  its  meaning  and  disarmed 
it.  In  the  language  of  the  Supreme  Court : 

"  The  instruction  is  sufficiently  limited  and  qualified  when  read  in  connec- 
tion with  all  the  other  instructions  to  which  it  specially  calls  attention.  It  does 
not  supersede  and  stand  as  a  substitute  for  the  other  instructions  given  for  both 
sides.  It  does  not  so  purport  upon  its  face.  On  the  contrary,  the  jury  are  di- 
rected to  carefully  scrutinize  such  other  instructions,  and  are  told  that  their  ap- 
parent inconsistencies  will  disappear  under  such  scrutiny." 

Is  that  good  law  in  capital  cases  ?  Is  it  not  the  duty  of  the  Court  in  trials 
involving  life  or  death  to  purge  the  instructions  of  all  "  apparent  inconsisten- 
cies," before  giving  them  to  the  jury  ?  If  it  is  claimed  that  in  a  trial  of  eight 
men  together  on  an  indictment  of  sixty-nine  counts,  a  trial  lasting  sixty  days, 
the  trial  Court  could  not  possibly  scrutinize  its  numerous  instructions  so  that 
they  would  not  contain  "  apparent  inconsistencies,"  how  could  twelve  unlearned 
men  "  scrutinize  "  the  same  instructions  and  make  the  apparent  inconsisten- 


18 

cies  "disappear?"  There  are  not  twelve  lawyers  in  Chicago  learned  and 
skillful  enough  to  perform  the  feat  which  the  Supreme  Court  assumes  the  jury 
actually  performed.  The  Supreme  Court  itself  is  not  able  to  do  it.  The  "  in- 
consistencies "  are  there  ;  and  no  extent  of  scrutiny  will  make  them  "  disap- 
pear." Besides,  the  evidence  is  clear  that  the  jury  did  not  attempt  to  "  scru- 
tinize" the  instructions  except  in  their  most  fatal  meaning  to  the  men  on 
tiral.  The  Supreme  Court  continues  thus  : 

"  In  the  last  sentence  the  jury  are  requested  to  disregard  any  unguarded 
expressions  that  may  have  crept  into  the  instructions  which  may  seem  to  as- 
sume the  existence  of  any  facts,  and  look  only  to  the  evidence,  etc." 

Why  was  it  that  the  many  creeping  illegalities  that  got  into  the  case  were 
venomous  towards  the  defendants  ?  How  came  it  that  "  unguarded  expres- 
sions "  crept  into  the  instructions;  expressions  that  assume  the  existence  of 
facts  ?  "  They  could  not  have  crept  in  except  by  forgery.  They  were  put 
in  by  the  Judge.  Having  put  them  in,  he  politely  "  requested  "  the  jury  to 
disregard  them.  Where  is  the  evidence  that  the  jury  did  as  requested  ? 
There  is  none,  while  the  proof  is  abundant  that  they  did  not.  It  was  unrea- 
sonable to  expect  that  the  jury  would  strike  out  unguarded  expressions  which 
assumed  the  existence  of  facts,  after  the  judge  himself  had  deliberately  put 
them  in,  and  why  is  it  that  in  all  this  voluminous  case  no  unguarded  expres- 
sions "  crept  in  "  which  assumed  the  existence  of  facts  favorable  to  the  ac- 
cused ?  Why  is  it  that  the  benefit  of  every  doubt  is  given  to  the  State,  while 
the  defendants  must  bear  the  evil  consequences  of  every  mistake  made  by 
lhe  State's  Attorney  and  the  Judge  ?  All  these  wrongs  are  not  without  a  rem- 
edy, and  that  remedy  lies  in  the  moral  nerve  of  the  Governor  of  Illinois. 

THE  INVERTED  LOGIC  OF  THE  COURT. 

Never  before,  except  in  burlesque,  was  the  meaning  of  words  reversed  as 
in  the  Anarchist  trial.  Logic  stood  on  its  head,  and  reasoned  with  its  heels. 
Facts  absent  from  the  theory  of  the  prosecution  were  solemnly  claimed  as 
evidence  to  establish  it.  It  was  averred  that  if  certain  events  had  happened 
which  did  not  happen,  they  would  have  shown  that  the  conspiracy  and  the 
tragedy  were  cause  and  consequence,  therefore  the  connection  is  proved. 
This  is  not  meant  for  ridicule,  and  its  grotesque  appearance  is  merely  the 
shadow  of  the  Supreme  Court  tracing  the  crime  back  to  the  conspiracy.  It 
^s  the  language  of  the  opinion  itself  that  throws  sarcasm  upon  the  decision. 
Here  is  the  claim  of  the  Supreme  Court : 


19 

"  The  mode  of  attack  as  made  corresponded  with  the  mode  of  attack  as 
planned." 

And  here  is  the  inconsequent  reasoning  by  which  that  claim  is  sup- 
ported : 

"The  Desplaines  street  station  was  in  sight  of  the  speaker's  wagon,  and 
only  a  short  distance  south  of  it.  If  a  bomb  had  been  thrown  into  the  sta- 
tion itself,  and  if  the  policemen  had  been  shot  down  while  coming  out,  a 
part  of  the  conspiracy  would  have  been  literally  executed  just  as  it  was 
agreed  upon. 

By  reasoning  upside  down  in  that  fashion  the  tragedy  in  the  Haymarket 
is  connected  with  a  conspiracy  that  was  not  carried  out,  and  seven  men 
vaguely  and  remotely  identified  with  said  "  conspiracy  "  are  connected  with 
a  bomb  thrown  by  "a  person  unknown,"  and  who  is  not  shown  to  have  had 
any  association  whatever  with  the  seven  men,  nor  any  connection  at  all  with 
the  so-called  conspiracy.  The  Supreme  Court  itself  virtually  rejects  the  theory 
that  Schnaubelt  threw  the  bomb,  for  the  more  comprehensive  drag-net  theory 
that  it  was  thrown  by  "  some  person  to  the  jurors  unknown." 

The  conspiracy  which  the  prosecution  attempted  to  show  on  the  trial,  and 
which  it  is  pretended  they  did  show,  was  not  carried  into  execution  in  any 
of  its  essential  details.  As  illustrated  and  explained  by  the  Supreme  Court 
itself,  it  was  a  conspiracy  that  aimed  at  a  social  and  political  revolution 
Hundreds,  aye,  thousands  of  men  were  engaged  in  it.  It  was  to  begin  by 
the  throwing  of  bombs  into  the  North  Avenue  station  and  into  other  stations 
in  the  city.  Well  drilled  men,  armed  with  rifles,  were  to  be  stationed  out 
side  to  shoot  the  police  as  they  came  out ;  then  the  conspirators  were  to 
march  inwards  towards  the  heart  of  the  city,  destroying  whatever  should  oppose 
them ;  the  telegraph  wires  and  the  hose  of  the  firemen  were  to  be  cut,  and 
the  reign  of  anarchy  begin.  Nothing  of  the  kind  occurred ;  nothing  of  it 
was  attempted  ;  nothing  of  it  prepared  for,  except  the  making  of  bombs  by 
Lingg. 

According  to  the  conspiracy  relied  on  by  the  prosecution  many  men 
should  have  been  engaged  in  it,  and  many  bombs  thrown.  In  fact  only  one 
bomb  was  thrown,  and  that  by  an  unknown  man.  This  disproves  that  con- 
spiracy, and  tends  to  show  that  the  bomb-throwing  was  the  revengeful  ac 
of  one  man  alone.  There  were  no  armed  men  with  rifles  anywhere,  and 
the  claim  that  pistols  were  fired  by  the  mob  is  disputed  by  strong  evidence. 
Every  essential  detail  of  the  alleged  conspiracy  was  absent  from  the  tragedy, 


20 

and  for  want  of  the  necessary  facts  a  scaffold  for  seven  men  is  built  of  "if" 
and  "  would  have  been." 

"  If  a  bomb  had  been  thrown  into  the  station,  and  if  the  policemen  had 
been  shot  down  while  coming  out,  a  part  of  the  conspiracy  would  have  been 
literally  executed." 

And  therefore  seven  men  must  die  for  a  conspiracy  which  was  not  exe- 
cuted, but  which  would  have  been  executed  if  something  which  never 
happened  had  been  done  ;  a  conspiracy,  of  which  if  it  even  existed,  some  of 
the  condemned  men  could  not  possibly  have  had  any  knowledge.  And  thus 
the  evidence  in  the  case  overwhelmingly  proves  that  the  mode  of  attack  as 
made  corresponded  not  with  the  mode  of  attack  as  planned. 

Had  the  indictment  been  simply  for  a  conspiracy  punishable  by  fine  and 
imprisonment,  the  prosecution  would  have  been  held  down  to  clear  and 
definite  allegations  with  which  the  evidence  would  have  been  compelled  to 
correspond.  As  it  was,  the  heavier  crime  of  murder  was  permitted  to  rest 
upon  an  undefined  and  shadowy  charge  composed  of  opposite  and 
contradictory  ingredients.  The  so-called  conspiracy,  instead  of  being  a 
substantial  accusation  based  on  fact- averments  on  which  issue  might  be 
taken,  was  nothing  but  a  claim  growing  out  of  a  mass  of  incoherent  run- 
ning testimony,  and  shifting  day  by  day.  The  conspiracy  was  a  remote 
cloud  changing  its  form  continually  in  obedience  to  the  changing  winds  of 
evidence.  One  day  it  was  like  a  weasel,  the  next  it  was  backed  like  a 
camel,  and  at  last  it  was  "  very  like  a  whale." 


UNIVERSITY  OF  ILLINOIS-URBANA 

335.83T77W  C002 

WAS  IT  A  FAIR  TRIAL? 


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